Aidinovski v. Apfel, 98 C 1458.

• Decision Date: 09 December 1998
• Docket Number: No. 98 C 1458.,98 C 1458.
• Parties: Sue AIDINOVSKI, SSN: 340-68-3650, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Illinois

27 F.Supp.2d 1097

Sue AIDINOVSKI, SSN: 340-68-3650, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.

No. 98 C 1458.

United States District Court, N.D. Illinois, Eastern Division.

December 9, 1998.

Jan L. Kodner, Chicago, IL, for Plaintiff.

Carole J. Ryczek, Assistant United States Attorney, Ayrie Moore, Assistant Regional Counsel, Social Security Administration, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, Senior District Judge.

Sue Aidinovski ("Aidinovski") seeks judicial review of a final decision of Commissioner of Social Security Kenneth Apfel ("Commissioner") denying Aidinovski's claim for disability insurance benefits under Social Security Act ("Act") §§ 216(i) and 223, 42 U.S.C. §§ 416(i) and 423.¹ As is usual in these cases, both sides now move for summary judgment under Fed.R.Civ.P. ("Rule") 56, with Aidinovski alternatively requesting a remand for a new hearing. For the reasons stated in this memorandum opinion and order, both motions for summary judgment are denied, but Aidinovski's alternative remand request is granted.

Medical History

Aidinovski was born on December 28, 1964 and has a high school education. She worked as a legal secretary and a word processor most of her adult life until May 12, 1993 (R. 209), when she stopped working because of the onset of her asserted disability. Aidinovski based her disability claim on fibromyalgia,² chronic fatigue syndrome, left shoulder chronic tendinitis and gastritis (R. 47).

Aidinovski's medical treatment spans many years. For purposes of these motions, her relevant medical history began when she sought treatment for chronic left shoulder pain in 1991. After an arthroscopy, she was diagnosed with tendinitis and synovitis of the left shoulder with fibrosis and subacromial bursitis, in addition to a touch of rheumatoid arthritis (R. 100, 101). Although she complained of chronic pain in the shoulder, the objective medical evidence (such as an MRI and the arthroscopy) was negative, failing to explain the severe pain she reported to her orthopedic surgeon (R. 99, 101). Aidinovski could not take anti-inflammatory pain medications for her shoulder because they caused her stomach problems (R. 100).

In October 1992 Aidinovski consulted a rheumatologist, Dr. Majid Serushan, who diagnosed her with fibromyalgia (R. 157, referring to R. 159-60). Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir.1996) (citations omitted) has described fibromyalgia as an "elusive and mysterious" disease that shares some features with chronic fatigue syndrome:

Its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are "pain all over," fatigue, disturbed sleep, stiffness, and — the only symptom that discriminates between it and other diseases of a rheumatic character — multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.³

Although Aidinovski consulted Dr. Serushan several times in 1992, she did not see him again until 1995.

In the interim she continued to see internist Dr. Jorge Balandrin regularly. During the years up to and after the claimed May 1993 disability onset date, Dr. Balandrin's notes confirm Aidinovski's shoulder pain and fibromyalgia as well as anxiety, depression, fatigue, insomnia, hypothyroid and other medical ailments (R. 103-08, 170). Aidinovski consulted Dr. Balandrin at least once every few months during the time period covered by his records.

In November 1994 Aidinovski underwent two consultative evaluations at the request of the Social Security Administration ("SSA"). According to the psychiatrist who met with her, she had no abnormalities except chronic pain disorder (R. 117-19), while the internist who examined her noted mild tenderness and diminished motion in the left shoulder as well as a history of fibromyalgia and possible synovitis versus bursitis of the left shoulder (R. 121-22). In early 1995 Dr. Balandrin also submitted reports to SSA explaining his prior diagnoses of depression, anxiety, fatigue, left shoulder problems, hypothyroid, gastritis and fibrositis (R. 124-29, 173-78).

In April 1995 Aidinovski returned to rheumatologist Dr. Serushan. There she complained of generalized weakness, difficulty sleeping and pain in her shoulders, neck, hips, back, hands and feet (R. 157). Dr. Serushan's musculoskeletal examination revealed a painful range of motion in the left shoulder with rotator cuff tenderness. In addition, he found many trigger points in the trapezius area of the neck. As he summarized matters (R. 157):

This is a very classic case of severe chronic fibrositis syndrome with left shoulder rotator cuff tendinitis. In the past, [Aidinovski] had extensive lavage of the left shoulder with some relief. At the present time, she is unable to work, and I believe she is disabled and she should be off work.

Accordingly he prescribed various medicines, but Aidinovski discontinued the pain medicine because it aggravated her gastritis (R. 156).

Aidinovski visited Dr. Serushan twice during the ensuing six months, and Dr. Serushan reported that Aidinovski's general pain condition was improving, with the exception of her left shoulder (R. 156, 158). In January 1996 Aidinovski again returned to Dr. Serushan with complaints of shoulder, neck and rib pain (R. 187). Dr. Serushan noted tenderness and muscle spasms. Aidinovski again returned in June 1996, describing epigastric pain (R. 186).⁴

Aidinovski's explanations of her ability to conduct her daily activities mirror much of what is contained in her medical records. She has consistently maintained that her pain and fatigue fluctuate rather unpredictably (R. 52, 214-15), so that her activities depend on how she feels on a particular day (R. 52), and so that some days are worse than others. On a bad day her pain and fatigue may prevent her from doing anything at all (R. 68, 218). On a better day she is able to do household chores for a few hours, although she may need to rest intermittently (R. 64, 219). Furthermore, her stomach problems prevent her from taking medications to relieve her pain (R. 70).

Medical Assessment Reports

Both of Aidinovski's regular physicians completed medical assessment reports evaluating her condition and her ability to do work-related activities. They too mirror what has been recounted in the preceding section.

Dr. Serushan filled out such a report in November 1995. He recorded his prior diagnoses of fibrositis syndrome and shoulder impingement syndrome and noted Aidinovski's chronic pain in the upper body, although he explained that his examinations revealed no functional loss except in the left shoulder (R. 153). He went on to state that Aidinovski will have chronic pain for many years that will not physically impair her daily life but could prevent her from holding a steady job (R. 153, 155). By contrast, her fatigue would greatly interfere with her daily living (R. 155). Dr. Serushan found that Aidinovski could not stand or walk for as many as 6 hours out of an 8-hour workday⁵ and that she could sit for roughly 3 to 4 uninterrupted hours in an 8-hour workday (R. 154). In any event he explained that she needs to lie down intermittently throughout the day because of her chronic pain. Finally, he stated that she could occasionally lift and carry 3 to 4 pounds but could not frequently lift or carry any weight (R. 154).⁶

Several months later, in February 1996, Dr. Balandrin completed the same form. He described Aidinovski's medical condition as including hypothyroidism, fibrositis, gastritis and depression (R. 167). He stated that her overall prognosis was good and that she should remain stable (R. 167), but that she complains of chronic fatigue and pain (R. 168). He further noted that she could stand or walk less than an hour at a time, and that she could sit for 1 to 2 hours at a time (R. 168). Dr. Balandrin said Aidinovski's lifting ability was 10 to 20 pounds occasionally and 5 pounds frequently, while her carrying ability was 5 to 10 pounds occasionally and less than 5 pounds frequently (R. 168). Finally, he also stated that fatigue might interfere with her daily activities, but he added that she was not complying with her thyroid medication at her last office visit (R. 169).

Procedural History

Aidinovski filed her application for disability benefits on October 18, 1994 (R. 28). After the SSA had denied her claim (R. 32) she requested reconsideration (R. 37), but that too was denied (R. 38). Aidinovski then successfully requested and received a hearing by an administrative law judge ("ALJ"). On July 16, 1996 (R. 41, 205) ALJ Christine Holtz found that Aidinovski was not disabled for the purposes of receiving Social Security benefits (R. 9-22). Next Aidinovski's request for review by the Appeals Council was denied on January 23, 1998 (R. 5-6). Aidinovski then filed this lawsuit.

ALJ Decision and Standard of Review

Aidinovski must suffer from a disability to be eligible for benefits. "Disability" is defined in pertinent part as the inability (Section 423(d)(1)(A)):

to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months....

Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995) (citations omitted) sets out the customary five-step inquiry prescribed by Reg. § 404.1520 for determining whether a claimant is disabled:

(1) whether the claimant is currently employed;

(2) whether the claimant has a severe impairment;

(3) whether the claimant's impairment meets or equals...